SB 228 — AN ACT relating to driving under the influence of marijuana.

UNOFFICIAL COPY 23 RS BRSB 1264228/GA AN ACT relating to driving under the influence of marijuana.

Page 1 of 1920 SB022810.100 - 1264 - XXXX 2/20/20233/13/2023 4:103:42 PM JacketedGA UNOFFICIAL COPY 23 RS BRSB 1264228/GA (7) "License" means any driver's or operator's license or any other license or permit to operate a motor vehicle issued under or granted by the laws of this state including:

If the defendant then declines either by word or by the act of refusal, he or she shall then be deemed to have refused if the refusal occurs at the site at which any alcohol concentration or substance test is to be administered;

Page 2 of 1920 SB022810.100 - 1264 - XXXX 2/20/20233/13/2023 4:103:42 PM JacketedGA UNOFFICIAL COPY 23 RS BRSB 1264228/GA (b) While under the influence of alcohol;

or (g) Having a marijuana concentration of 5 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle.

or (b) If the sample of the person's blood that is used to determine the presence of a Page 3 of 1920 SB022810.100 - 1264 - XXXX 2/20/20233/13/2023 4:103:42 PM JacketedGA UNOFFICIAL COPY 23 RS BRSB 1264228/GA controlled substance was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section.

(3) (a) In any prosecution for a violation of subsection (1)(b) or (e) of this section in which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant's blood as determined at the time of making analysis of his or her blood or breath shall give rise to the following presumptions:

(a)1.[(a)] If there was an alcohol concentration of less than 0.04 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed that the defendant was not under the influence of alcohol;

and (b)2.[(b)] If there was an alcohol concentration of 0.04 or greater but less than 0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.

The(b) provisionsIn ofany thisprosecution for a violation of subsection shall(1)(c) notor be(e) construedof asthis limitingsection in which the introductiondefendant ofis anycharged otherwith competenthaving evidenceoperated bearingor uponbeen thein questionsphysical control of whethera themotor defendantvehicle waswhile under the influence of alcoholmarijuana, orthe othermarijuana substances,concentration in anythe prosecutiondefendant's forblood aas violationdetermined at the time of subsectionmaking (1)(b)analysis of his or (e)her ofblood thisshall section.give rise to the following presumptions:

1.

If there was a marijuana concentration of less than 4 based upon the Page 4 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA definition of marijuana concentration in Section 1 of this Act, it shall be presumed that the defendant was not under the influence of marijuana;

and 2.

If there was a marijuana concentration of 4 or greater but less than 5 based upon the definition of marijuana concentration in Section 1 of this Act, that fact shall not constitute a presumption that the defendant either was or was not under the influence of marijuana, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.

The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the questions of whether the defendant was under the influence of alcohol, marijuana, or other substances, in any prosecution for a violation of subsection (1)(b),[ or] (e), or (g) of this section.

Page 4 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 (b) A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice.

(a) For the first offense within a ten (10) year period, be fined not less than two Page 5 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA hundred dollars ($200) nor more than five hundred dollars ($500), or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days, or both.

If any of the aggravating circumstances listed in subsection Page 5 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 (11) of this section are present, the mandatory minimum term of imprisonment shall be fourteen (14) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release;

If any of the aggravating circumstances listed in Page 6 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be sixty (60) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release;

A court shall receive as proof of a prior conviction a Page 6 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 copy of that conviction, certified by the court ordering the conviction.

(7) If the person is under the age of twenty-one (21) and there was an alcohol concentration of 0.08 or greater based on the definition of alcohol concentration in Page 7 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA KRS 189A.005, the person shall be subject to the penalties established pursuant to subsection (5) of this section.

(11) For purposes of this section, aggravating circumstances are any one (1) or more of Page 7 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 the following:

Page 8 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA (e) Refusing to submit to any test or tests of one's blood, breath, or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section, except it shall not be considered an aggravating circumstance for a first offense under subsection (5)(a) of this section;

Page 8 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 (i) Hydrocodone;

(1) All persons convicted of violation of KRS 189A.010(1)(a), (b), (c), (d),[ or] (e), or Page 9 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA (g) shall be sentenced to pay a service fee of four hundred twenty-five dollars ($425), which shall be in addition to all other penalties authorized by law.

(c) One percent (1%) shall be transferred to the Prosecutor's Advisory Council for training of prosecutors for the prosecution of persons charged with violations Page 9 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 of this chapter and for obtaining expert witnesses in cases involving the prosecution of persons charged with violations of this chapter or any other offense in which driving under the influence is a factor in the commission of the offense charged;

Fifty percent (50%) shall be credited to the Cabinet for Health and Family Services, Department for Behavioral Health, Developmental and Intellectual Disabilities, for the purposes of providing direct services to Page 10 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA individuals with brain injuries that may include long-term supportive services and training and consultation to professionals working with individuals with brain injuries.

Unless the person is under eighteen (18) years of age, in addition to the Page 10 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 penalties specified in KRS 189A.010, the Transportation Cabinet shall suspend a person's license to operate a motor vehicle or motorcycle upon conviction of KRS 189A.010(1).

For a person who is issued an ignition interlock license under KRS 189A.340 and who meets the ninety (90) consecutive day requirement within the first four (4) months of the Page 11 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA issuance of the ignition interlock license, four (4) months;

For a person who is issued an ignition interlock license under KRS 189A.340 but does not meet the one hundred twenty (120) consecutive day requirement within the first twelve Page 11 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 (12) months of the issuance of the ignition interlock license, until the person meets the one hundred twenty (120) consecutive day requirement or eighteen (18) months, whichever is shorter;

For a person who is issued an ignition interlock license under KRS 189A.340 and who meets the one hundred twenty (120) consecutive day requirement within the first eighteen (18) months of the issuance of the ignition interlock license, Page 12 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA eighteen (18) months;

For a person who is issued an ignition interlock license under KRS 189A.340 but does not meet the one hundred twenty Page 12 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 (120) consecutive day requirement within the first thirty (30) months of the issuance of the ignition interlock license, until the person meets the one hundred twenty (120) consecutive day requirement or sixty (60) months, whichever is shorter;

First offense of KRS 189A.010, the person's license shall be Page 13 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA suspended as provided in subdivision a.

For a person who is issued an ignition interlock license under KRS Page 13 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 189A.340 and who meets the ninety (90) consecutive day requirement within the first four (4) months of the issuance of the ignition interlock license, four (4) months;

Page 14 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA 4.

(a) A person shall surrender his or her license to operate a motor vehicle or Page 14 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 motorcycle to the court.

(4) In determining the ten (10) year period under this section, the period shall be Page 15 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA measured from the dates on which the offenses occurred for which the judgments of conviction were entered.

(a) For a first offense within a ten (10) year period, be guilty of a Class B misdemeanor and have his or her license suspended by the Transportation Cabinet for six (6) months, unless at the time of the offense the person was Page 15 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d),[ or] (e), or (g), in which event the person shall be guilty of a Class A misdemeanor and have his or her license suspended by the Transportation Cabinet for a period of one (1) year;

(b) For a second offense within a ten (10) year period, be guilty of a Class A misdemeanor and have his or her license suspended by the Transportation Cabinet for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d),[ or] (e), or (g), in which event the person shall be guilty of a Class D felony and have his or her license suspended by the Page 16 of 20 SB022810.100 - 1264 - XXXX 3/13/2023 3:42 PM GA UNOFFICIAL COPY 23 RS SB 228/GA Transportation Cabinet for a period of two (2) years;

Page 16 of 19 XXXX 2/20/2023 4:10 PM Jacketed UNOFFICIAL COPY 23 RS BR 1264 (1) The person was charged and arrested by a peace officer with a violation of KRS 189A.010(1)(a), (b), (c), (d),[ or] (e), or (g);